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Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF REMEDYTEMP, INC.
Robert E. McDonough and Alan M. Purdy certify that:
1. They are the Chairman of the Board of Directors and
Assistant Secretary, respectively, of RemedyTemp, Inc., a California
corporation.
2. The articles of incorporation of this corporation are
amended and restated to read as follows:
ARTICLE I
NAME
The name of this corporation is RemedyTemp, Inc.
ARTICLE II
PURPOSE
The purpose of this corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the trust company
business or the practice of a profession permitted to be incorporated by the
California Corporations Code.
ARTICLE III
LIABILITY OF DIRECTORS
Section 1. Limitation on Liability. The liability of the
directors of this corporation for monetary damages shall be eliminated to the
fullest extent permissible under California law.
Section 2. Indemnification of Agents. This corporation is
authorized to indemnify agents (as defined in Section 317(a) of the California
Corporations Code) through bylaw provisions, agreements with the agents, or
otherwise, in excess of the indemnification expressly permitted by Section 317
of the California General Corporation Law for breach of duty to this corporation
and its shareholders, subject only to the applicable limits set forth in
Sections 204 and 317 of the California General Corporation Law.
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ARTICLE IV
SHARES
Section l. Classes and Number of Shares. This corporation is
authorized to issue only one class of shares of stock, which shall be issuable
in two series designated as Series A Common Stock and Series B Common Stock,
respectively. The aggregate number of shares this corporation is authorized to
issue is Ten Million (10,000,000), consisting of Two Million Five Hundred
Thousand (2,500,000) shares of Series A Common Stock, par value $0.01, and Seven
Million Five Hundred Thousand (7,500,000) shares of Series B Common Stock, par
value $0.01.
Section 2. Voting Rights. Holders of Series A Common Stock
shall have and possess sole and exclusive voting power with respect to all
matters on which shareholders of this corporation are entitled to vote, and each
such shareholder shall be entitled to cast one vote on each such matter for each
share of Series A Common Stock held by that shareholder; provided that, with
respect to the election of directors, holders of shares of Series A Common Stock
shall be entitled to cumulate their votes in the manner and to the fullest
extent permitted under Section 708 of the California Corporations Code. Holders
of Series B Common Stock shall have and possess no voting rights or powers
except as otherwise required by the California Corporations Code.
Section 3. Other Rights. Except as otherwise required by the
California Corporations Code or as otherwise provided in these Articles of
Incorporation or this corporation's Bylaws, each share of the Series A Common
Stock and each share of the Series B Common Stock shall have identical powers,
preferences, and rights, including without limitation liquidation rights.
ARTICLE V
SHARES
A. GENERAL PROVISIONS
At all times up to the time immediately prior to the
consummation of an initial public offering of this corporation's equity
securities ("Initial Public Offering"), this Article V shall have no effect.
Effective immediately prior to the consummation of the Initial Public Offering,
Article IV hereof shall be eliminated and this Article V shall become effective.
Section 1. Authorized Shares. The aggregate number of shares
this corporation is authorized to issue is Fifty-Nine Million Five Hundred
Thirty Thousand (59,530,000), consisting of Fifty Million (50,000,000) shares of
Class A Common Stock, par value $0.01 per share, Four Million Five Hundred
Thirty Thousand (4,530,000) shares of Class B Common Stock, par value $0.01 per
share, and Five Million (5,000,000) shares
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of Preferred Stock, par value $0.01 per share. The Class A Common Stock and the
Class B Common Stock collectively are referred to herein as the "Common Stock."
The Preferred Stock may be divided into such number of series
as the Board may from time to time determine. The Board is authorized to
determine the designation of any such series. The Board is also authorized to
determine or alter the rights, preferences, privileges, qualifications,
limitations and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock, including, without limitation, the dividend rights
and rates (and whether dividends are cumulative), conversion rights, if any,
voting rights (including the number of votes, if any, per share, as well as the
number of members, if any, of the Board or the percentage of members, if any, of
the Board that each series of Preferred Stock may be entitled to elect), rights
and terms of redemption (including sinking fund provisions, if any), redemption
price and liquidation preferences, and, within the limits and restrictions
stated in any resolution or resolutions of the Board originally fixing the
number of shares constituting any series, to increase or decrease (but not below
the number of shares of such series then outstanding) the number of shares of
any such series subsequent to the issuance of shares of that series. In case the
number of shares of any series shall be so decreased, the shares constituting
such decrease shall resume the status which they had prior to the adoption of
the resolution originally fixing the number of shares of such series.
Fifty-Four Thousand Five Hundred and Thirty (54,530) Shares of
the Preferred Stock shall be designated as Series A Junior Participating
Preferred Stock (hereinafter referred to as the "Series A Preferred Stock"),
with the rights, preferences, privileges and restrictions set forth in Article
V.B below. The remainder of the Preferred Stock shall be undesignated, subject
to the Board's authority described in the immediately preceding paragraph.
Section 2. Reclassification and Stock Split of Common Stock.
Upon effectiveness of this Article V, (a) all shares of Series A Common Stock
outstanding prior to the effectiveness of this Article V shall be automatically
reclassified as Class A Common Stock; (b) all shares of Series B Common Stock
outstanding prior to the effectiveness of this Article V shall be automatically
reclassified as Class B Common Stock (such reclassification of the Series A
Common Stock and the Series B Common Stock being referred to herein as the
"Reclassification"); and (c) immediately after the Reclassification and prior to
the consummation of the Initial Public Offering, each outstanding share of Class
A Common Stock shall be split up and converted into 1.812 shares of Class A
Common Stock, and each outstanding share of Class B Common Stock shall be split
up and converted into 1.812 shares of Class B Common Stock.
Section 3. Voting Rights. Except as otherwise required by
applicable law, holders of Class A Common Stock shall have and possess sole and
exclusive voting power with respect to all matters on which shareholders of this
corporation are entitled to vote, and each such shareholder shall be entitled to
cast one vote on each such matter for each share of Class A Common Stock held by
that shareholder. Holders of Class B Common
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Stock shall have and possess no voting rights or powers except as required by
applicable law.
Section 4. Automatic Conversion of Class B Common Stock. Each
share of Class B Common Stock shall automatically convert into one share of
Class A Common Stock without the requirement of any further action upon the
earliest to occur of: (i) a transfer of such share to a transferee who is not an
affiliate of the holder thereof in an underwritten public offering pursuant to
an effective registration statement under the Securities Act of 1933, as amended
(the "Securities Act") or Rule 144 promulgated under the Securities Act ; (ii)
the death or legal incapacity of Robert E. McDonough, Sr.; or (iii) the tenth
anniversary of the consummation of the Initial Public Offering, but is not
otherwise convertible. For purposes hereof, an "affiliate" of a holder of Class
B Common Stock is a person or entity controlling, controlled by, or under common
control with, and/or party to any agreement or understanding regarding voting of
shares, governance or control of the corporation with, the holder of Class B
Common Stock. For purposes hereof, "legal incapacity" means incapable of
entering into a valid and binding contract under California law.
Section 5. Dividend and Liquidation Rights. Holders of the
outstanding shares of Class A Common Stock and Class B Common Stock shall be
entitled to receive dividends and distributions when, as and if declared by the
Board of Directors out of funds legally available therefor. Any cash dividends
or other distributions declared or paid must be paid equally on a per share
basis on the Class A Common Stock and the Class B Common Stock. In the event of
a liquidation, dissolution or winding up of the corporation, holders of Class A
Common Stock and Class B Common Stock will be entitled to share ratably in all
assets remaining after payment of liabilities and the liquidation preference of
any outstanding preferred stock.
Section 6. Other Rights. Except as otherwise required by the
California Corporations Code, the bylaws of this corporation, or as otherwise
provided in these Articles of Incorporation, each share of Class A Common Stock
and each share of the Class B Common Stock shall have identical powers,
preferences, and rights. The holders of the Class A Common Stock and the Class B
Common Stock shall have no preemptive, subscription, conversion or redemption
rights other than the conversion rights of the Class B Common Stock described
herein.
B. SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Section 1. Designation and Amount. The number of authorized
shares of Series A Preferred Stock may be increased or decreased by resolution
of the Board of Directors, provided that no decrease shall reduce the number of
shares of Series A Preferred Stock to a number less than the number of shares of
Series A Preferred Stock then outstanding plus the number of shares of Series A
Preferred Stock reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon the
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conversion of any outstanding securities issued by the corporation convertible
into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock ranking superior to the shares of Series A Preferred
Stock with respect to dividends, the holders of shares of Series A Preferred
Stock shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the 15th day of January, April, July and October in each year
(each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to, subject to the
provision for adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on any Common Stock since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Preferred Stock.
In the event the corporation shall at any time after the effectiveness of this
Article V (the "Rights Declaration Date") (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which holders of outstanding shares
of Series A Preferred Stock were entitled immediately prior to such event under
the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (A) above, and set
aside funds or other assets, as the case may be, for payment thereof,
concurrently with any declaration of a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock).
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Series A Preferred
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Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of Series
A Preferred Stock in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder thereof
to 1,000 votes on all matters submitted to a vote of the shareholders of the
corporation. In the event the corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each case the
number of votes per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A Preferred Stock and the holders of shares of Common Stock
(entitled to vote) shall vote together as one class on all matters submitted to
a vote of stockholders of the corporation.
(C) Except as set forth herein, holders of Series A Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common
Stock (entitled to vote) as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) The corporation shall not declare any dividend on, make
any distribution on, or redeem or purchase or otherwise acquire for
consideration any shares of Common Stock after the first issuance of a share or
fraction of a share of Series A Preferred Stock unless concurrently therewith it
shall declare a dividend on the Series A Preferred Stock, and set aside funds or
other assets, as the case may be, for payment thereof, as required by Section 2
hereof.
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(B) Whenever dividends or distributions payable on the Series
A Preferred Stock as provided in Section 2 have been declared but not paid,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the corporation shall not:
(i) declare or pay dividends on, make any other
distribution on, or redeem or purchase or otherwise acquire for
consideration any Common Stock or other shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid ratably on the Series
A Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, provided that the corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the corporation ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock;
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on
a parity with the Series A Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(C) The corporation shall not permit any subsidiary of the
corporation to purchase or otherwise acquire for consideration any shares of
stock of the corporation unless the corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or
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resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the corporation, no distribution shall be made to the holders
of Common Stock or other shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A Preferred Stock
unless, prior thereto, the holders of shares of Series A Preferred Stock shall
have received $1,000 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Preferred Stock
unless, prior thereto, the holders of shares of Common Stock shall have received
an amount per share (the "Common Adjustment") equal to the quotient obtained by
dividing (i) the Series A Liquidation Preference by (ii) 1,000 (as appropriately
adjusted as set forth in subparagraph C below to reflect such events as stock
splits, stock dividends and recapitalizations with respect to the Common Stock)
(such number in clause (ii), the "Adjustment Number"). Following the payment of
the full amount of the Series A Liquidation Preference and the Common Adjustment
in respect of all outstanding shares of Series A Preferred Stock and Common
Stock, respectively, holders of Series A Preferred Stock and holders of shares
of Common Stock shall receive their ratable and proportionate share of remaining
assets to be distributed in the ratio of the Adjustment Number to one (1) with
respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series A Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event that there
are not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the Adjustment Number in effect immediately prior to such event
shall be adjusted by multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
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Section 7. Consolidation, Merger, etc. In case the corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the shares
of Series A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares
of Series A Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9. Ranking. The Series A Preferred Stock shall rank
junior to all other series of the corporation's Preferred Stock, if any, as to
the payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. Amendment. The Articles of Incorporation of the
corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of a majority or more of the outstanding shares of Series A
Preferred Stock, if any, voting separately as a class.
Section 11. Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share, which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
ARTICLE VI
BYLAWS
At all times up to immediately prior to the consummation of
the Initial Public Offering, this Article VI shall have no effect. Effective
immediately prior to the consummation of the Initial Public Offering, this
Article VI shall become effective.
In furtherance and not in limitation of powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend, and rescind from
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time to time any or all of the bylaws of the corporation; provided, however,
that any bylaw amendment adopted by the Board of Directors increasing or
reducing the authorized number of directors or otherwise amending or altering
the classified nature of the Board of Directors shall require a resolution
adopted by the affirmative vote of not less than seventy-five (75%) percent of
the directors. In addition, new bylaws may be adopted or the bylaws may be
amended or repealed only by a vote of not less than sixty-six and two-thirds (66
2/3%) percent of the outstanding stock of the corporation entitled to vote
thereon.
3. The foregoing Amendment and Restatement of Articles of
Incorporation has been duly approved by the board of directors.
4. The foregoing Amendment and Restatement of Articles of
Incorporation has been duly approved by the required vote of shareholders in
accordance with Sections 902 and 903 of the California General Corporation Law.
The total number of outstanding shares of the corporation is 3,750,000 shares of
Common Stock, consisting of 1,250,000 shares of Series A Common Stock and
2,500,000 shares of Series B Common Stock. The number of shares of each series
of Common Stock voting as a class in favor of the amendment equaled or exceeded
the vote required. The percentage vote required for each series of Common Stock
was more than 50% of each, voting as a class.
We further declare under penalty of perjury under the laws of
the State of California that the matters set forth in this certificate are true
and correct of our own knowledge.
Dated effective as of April 27, 1996.
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Robert E. McDonough,
Chairman of the Board of Directors
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Alan M. Purdy, Assistant Secretary
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